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07/31/2009

Ashcroft says AG has to put 'the best legal face on it'

Former Attorney General John Ashcroft deftly defended his tenure as the country’s top prosecutor while sidestepping a few questions that arose in an ABA panel discussion among former attorneys general on “Lessons From History.”

When asked about the tension between faithfully enforcing the law and answering to the president on policy, Ashcroft, who served under President George W. Bush, said it was important to remember that the president is “not above the law, but he is the president so that means he’s above you.”

On policy matters, Ashcroft said he was willing to defer to the president, but if there was a point at which he was asked to contravene his oath to uphold the Constitution he would decline. “You vote with your feet in that circumstance,” Ashcroft said. Other attorneys general agreed there was a clear distinction between implementing the law and advising on policy.

When the discussion turned to whether it’s most important to give the president the straight view of the law or put the best legal face on what the president wants, Ashcroft said he wanted to answer the question with “yes.”

“It’s always important to live within the law, but even when you do, you have to put the best legal face on it,” Ashcroft said.

On the issue of how Attorney General Eric Holder Jr. should handle calls for possible prosecution of U.S. officials who may have enabled torture of imprisoned enemy combatants, Ashcroft advised Holder to consider issues of national security and the power of the president to protect national security. He suggested Holder should also distinguish between people acting within the given legal advice and people who stepped outside those limits.

“Obviously, you realized now that I’m not answering this question,” Ashcroft said. “This is a tender arena.”

Still, ultimately, he said, “I think you have to give the president the benefit of the doubt in areas of ambivalence.”